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NUMBER 13-11-00780-CV

COURT OF APPEALS

THIRTEENTH DISTRICT OF TEXAS

CORPUS CHRISTI - EDINBURG 

RIO GRANDE VALLEY VEIN CLINIC, P.A.,

D/B/A RGV VEIN LASER & AESTHETIC CLINIC, Appellant,

 v.

YVETTE GUERRERO, Appellee.

 

On appeal from the 138th District Court 

of Cameron County, Texas.

 

DISSENTING MEMORANDUM OPINION

Before Justices Rodriguez, Benavides and Perkes 

Dissenting Memorandum Opinion by Justice Perkes 

I respectfully dissent from the majority’s opinion because the laser hair removal 

in this case constituted health care treatment. Therefore, under chapter 74 of the Texas 

Civil Practice and Remedies Code, Yvette Guerrero was required to timely file an expert 

report. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(a) (West 2011). 
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When a person receives a treatment from a physician in a physician’s office, as 

opposed to visiting a spa or nonmedical setting, there is a heightened expectation that 

the person will receive a medically sound benefit and not be harmed. Once a physicianpatient relationship is established, as in this case, the physician is held to a higher 

standard of care than a cosmetologist or an ordinary person. An absurd result would 

occur if a physician is left to guess whether or not a given procedure to be performed 

within the scope of his medical practice is health care under the Medical Liability Act or 

not.1

A health care liability claim consists of three elements: (1) a physician or a 

health care provider must be the defendant; (2) the suit must be about the patient’s 

treatment, lack of treatment, or some other claimed departure from accepted standards 

of medical care or health care or safety or professional or administrative services

directly related to health care; and (3) the defendant's act, omission, or other departure 

must proximately cause the patient’s injury or death, whether the claim or cause of 

action sounds in tort or contract. TEX. CIV. PRAC. & REM. CODE ANN. § 74.001(a)(13). 

The dispute here concerns the second element, that is, whether the physician’s

alleged failure to safely provide laser hair removal was a deviation from an accepted 

standard of medical care. Even under the medical definition of “treatment” this Court 

 

1

The Supreme Court of Texas has recently requested full briefing on the merits in a laser hair 

removal case. Bioderm Skin Care, LLC v. Sok, Case No. 11-0773 (Tex. June 22, 2012)(requesting 

briefing on the merits in a case in which the court of appeals held laser removal of unwanted hair was not 

“health care” for purposes of the medical malpractice statute). The Supreme Court earlier granted a 

petition for review in a laser removal case, but the parties settled prior to determination. Ghazali v. 

Brown, Case No. 10-0232, 2011 Tex. LEXIS 119 (Tex. Feb 8, 2011)(petition for review granted, but 

dismissed by agreement)(granting petition for review in a case in which the court of appeals held laser 

hair removal is not medical care and the claim is not a health care liability claim under the Medical Liability 

Act). 
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adopted in Tesoro, Guerrero received medical treatment because treatment includes 

prevention of injury, and a person receiving laser hair removal treatment from a 

physician within the context of his medical practice would reasonably expect the 

physician to perform the procedure in a manner as to prevent injury. See Tesoro v. 

Alvarez, 281 S.W.3d 654, 659 (Tex. App.—Corpus Christi 2009, no pet.) (applying the

definition of “treatment” found in Mosby’s Medical Dictionary). 

Guerrero’s petition and the record in this case are silent regarding whether 

Guerrero sought the laser hair removal treatment solely for cosmetic reasons or for a 

condition such as hirsutism or hypertrichosis. See Davis v. Am. Home Prods., Corp., 

02-0942, 844 So.2d 242, 248 (La. App. 4 Cir. 3/26/03) (listing, in the context of a classaction lawsuit against a manufacturer, hirsutism and hypertrichosis as potential side 

effects and including description of hypertrichosis as excessive body and facial hair in a 

masculine pattern). The trial court in its remarks at the hearing on RGV Vein Clinic’s 

motion to dismiss, clearly viewed the hair removal as cosmetic in nature, and neither 

party corrected this assumption. However, even if Guerrero sought hair removal solely 

for cosmetic reasons, that does not necessarily compel the conclusion that her claim is 

not a health care liability claim because elective or cosmetic procedures have been 

treated as and held to be health care. See e.g., Apodaca v. Miller, 281 S.W.3d 123, 

128–29 (Tex. App.—El Paso 2008, no pet.) (treating a facelift and cosmetic removal of 

fatty, excess tissue around the eyes as health care subject to the expert-report 

requirement); see also Key v. Viera, No. 01-07-00587-CV, 2009 WL 350602, at *8 (Tex. 

App.—Houston [1st Dist.] 2009, no pet.) (mem. op.) (holding liposuction and a facelift 

performed by a cosmetic surgeon were health care). 
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While the majority is correct that an individual does not have to be a physician to 

perform laser hair removal, it is incorrect to say that laser hair removal can be 

performed without the supervision of a physician. Rather, the new statute requires, inter 

alia, that all laser hair removal facilities are required to have a written contract with a 

consulting physician to “establish proper protocols for the services provided at the 

facility” and to “audit the laser hair removal facility’s protocols and operations.” See 

TEX. HEALTH & SAFETY CODE ANN. § 401.519(a) (West 2010). In addition, the consulting 

physician must be available for emergency consultations and appointments relating to 

care. Id. § 401.519(c). While section 401.519 was not effective until September 1, 

2009, after the events that form the basis of Guerrero’s lawsuit, it supports the 

conclusion that a physician performing laser hair removal should demonstrate greater 

expertise and is held to a higher standard of care than a non-physician performing the 

same procedure. 

I am cognizant that this Court handed down Tesoro v. Alvarez, holding that with 

respect to laser hair removal, no expert report is required. Tesoro, 281 S.W.3d at 665–

66. Tesoro, however, is factually distinguishable, and at least three of the factors this 

Court found significant in Tesoro are not present in this case. 

First, Tesoro, did not involve a doctor-patient relationship. See id. at 665. This 

Court gave considerable weight to the fact that Dr. Tesoro neither supervised nor 

participated in the laser hair removal at issue, writing that “no doctor-patient relationship 

would be found to exist between Alvarez and Dr. Tesoro.” Id. By contrast, it is 

undisputed in this case that a physician performed the laser hair removal that forms the 

basis of Guerrero’s lawsuit. 
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Second, in Tesoro, this Court found it significant that the plaintiff only pleaded a

vicarious-liability claim against Dr. Tesoro as a general partner in the business whose 

agent, Blount, actually performed the hair removal. Id. at 656, 665. The vicariousliability claim did not assert that “Dr. Tesoro failed to provide proper health care 

treatment.” Id. at 665. In this case, as in the Kanase case, Guerrero’s claim is 

premised on a theory of direct liability for failure to meet the negligence standard of 

care, rather than vicarious liability under agency principles. See Kanase v. Dodson, 303 

S.W.3d 846, 849 n.2 (Tex. App.—Amarillo 2009, no pet.) (distinguishing Tesoro and 

concluding direct negligence claims against the doctor and laser center pertaining to 

laser hair removal performed by employees were within the scope of the Medical 

Liability Act); see also Stanford v. Cannon, No. 06-11-00011-CV, 2011 WL 2518856, at 

*5 (Tex. App.—Texarkana June 23, 2011, no pet.) (mem. op.) (distinguishing Tesoro, 

and concluding that although the plaintiff pleaded his claim against a physician under a 

vicarious-liability theory, the claim was one for health care liability when physician was 

directly involved in supervision of laser hair removal from plaintiff’s genitalia and file 

contained medical documentation).

Third, in Tesoro, the record did not include health care records and as a result 

this Court found Tesoro’s argument based on the existence of health care records 

unsupported. See 281 S.W.3d at 659–60. By contrast, while the record does not 

contain the actual health care records, it is undisputed that (1) RGV Vein Clinic created 

a medical chart and medical records for Guerrero; (2) Guerrero was considered to be a 

patient; and (3) Guerrero signed a patient data sheet, an informed-consent form stating 

the risks and benefits of the treatment, and a Health Insurance Portability and 
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Accountability Act (“HIPAA”) information and consent form. This documentation 

supports the conclusion that Guerrero’s claim is a health care liability claim. See 

Stanford, 2011 WL 2518856, at *5.

For these reasons, this Court should reverse the trial court’s order denying RGV 

Vein Clinic’s motion to dismiss, render judgment that Guerrero's claims be dismissed 

with prejudice, and remand the case to the trial court solely on the issue of the 

appropriate award of attorney's fees and costs incurred by appellants in relation to this 

case. See TEX. CIV. PRAC. & REM. CODE ANN. § 74.351(b); see also Kanase, 303 

S.W.3d at 850.

______________________

Gregory T. Perkes

Justice

Delivered and filed the

30th day of August, 2012.